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Hearsay

Hearsay is an out-of-court statement offered for the truth of the matter asserted. It is one of the most popular bar exam topics. There will definitely be MBE questions about this and a high probability of an MEE question too.

When answering a bar exam question, address hearsay after addressing logical and legal relevance.

You can find the authorative tested rules of evidence from the Federal Rules of Evidence Rules 801-806.

Hearsay Statements are Generally Inadmissable.

Hearsay is generally admissable because it is generally unreliable. Do we really know what a person said? How reliable is someone else's account of an event? In general, hearsay is not allowed as evidence in a trial unless one of the following exemptions exist.

Exceptions to Hearsay

The following are outright exceptions to Hearsay:

  1. Present Sence Impression or a statement describing or explaining an event or condition, made while or immediately after the declarant perceived the event.
  2. Excited Utterance or a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
  3. Then-existing mental, emotional, or physical condition of the declarant.
  4. A statement made for medical diagnosis or treatment.
  5. A statement that helps the declarant recall a document.
  6. Records or lack thereof of regularly conducted activity
  7. Public records or lackthereof including records for vital statistics (e.g. birth, marriage, death).
  8. Religious cermonial records validated by an instutiton.
  9. Family records, including heirlooms.
  10. Debt agreements like secured transactions and mortgages.
  11. Ancient documents whose authenticity is established.
  12. Market reports, periodicals, or similar commercial publications.
  13. Reputation concerning personal or family history.
  14. Reputation concerning boundaries or general history of a land or region.
  15. Community reputation about a person's character.
  16. Previous convictions after a trial or guilty plea.
  17. Previous convictions of declarant's accomplices if proved by reputation.

Unavailable Declarant

A declarant may be deemed unavailable if he cannot or will not testify in a court proceeding. This includes purposefully violating a summons.

Exceptions that Do Not Require Declarant to Be Available.

Some hearsay exceptions require the person who uttered the statement to be available in a court proceeding these include:

  1. Prior Testimony if the opposing party has a chance to cross-examine the declarant.
  2. A dying declaration of the declarant.
  3. Statements against interest.
  4. Statements of family or personal history.